Labor and Employment Law: Tri-State Round-Up
"Pregnant Workers Fairness Act" Becomes Law in New York City
On October 2, 2013, New York City Mayor Michael Bloomberg signed into law the "Pregnant Workers Fairness Act" (PWFA) in an attempt to plug a perceived gap in the Pregnancy Discrimination Act, which does not require accommodation for pregnant employees. Once the new law takes effect in early February 2014, it will require employers in New York City to offer reasonable accommodation for pregnancy, childbirth and related medical conditions.
The PWFA will apply to all businesses in New York City with four or more employees, including independent contractors. It requires that written notice of its provisions be presented to all new employees at the time of hire, and that a poster advising employees of their rights under the PWFA—to be produced by the City's Commission on Human Rights—be posted within the employer's facility. Employers that are able to demonstrate that compliance would pose an undue hardship are excluded from compliance. Employees who believe they have been the victims of discrimination in violation of the PWFA have the option of either filing a complaint with the New York City Commission on Human Rights or bringing a court action against their employer.
NYS Department of Labor Proposes New Wage Deduction Regulations
Employers in New York have been waiting since June 2012 for guidance regarding amendments made that month to Section 193 of the New York Labor Law restoring employers' ability to make deductions from employee wages for overpayments and advances, but only in specific, as-yet-undefined circumstances. The wait, however, appears to be nearing an end.
In May 2013, the NYSDOL issued proposed wage deduction regulations that address not only deductions for overpayments and advances, but also deductions deemed permissible because they are "for the benefit of the employee." The complete proposed regulations are available on the NYSDOL website (www.labor.ny.gov./legal/wage-deduction-regulation.shtm), but the following is a brief summary:
Deductions for Overpayments
Written authorization from the employee is not required for the employer to make deductions for unintended overpayments. The proposed regulations specify in detail, however, the timing, frequency, amount permitted and advance notice required for such deductions, along with dispute resolution procedures and the method by which improper deductions are to be repaid.
Deductions in Repayment of an Advance
The new regulations state that any provision of money to an employee by an employer that is accompanied by the accrual of interest, fees or a repayment amount of anything other than the specific amount provided to the employee is not an advance, and it may not be recouped via wage deduction. Furthermore, the parties must agree in writing to the terms of repayment before the advance is given; and once agreement is reached, no further permission or notice is required until the entire amount of the advance has been recouped.
Deductions for the Benefit of the Employee
Such deductions are expressly limited to those listed in Section 193 of New York's Labor Law, along with benefits for health and welfare, pension and savings, charity, representation, transportation, food and lodging.
Employers are encouraged to proceed with caution if they wish to implement a program for recoupment of overpayments and wage advances, as the wage deduction regulations proposed by the NYSDOL are not yet final and are thus subject to change.
New State Law Limits Employer Access to Employees' Social Media Accounts
A new law set to take effect on December 1, 2013 will make New Jersey the latest of a growing number of states—including Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Mexico, Oregon, Utah and Washington—that prohibit employers from requesting access to the social media accounts of current or prospective employees. The law also prohibits employers from retaliating or discriminating against any such individual who either refuses to provide such access or who complains about what he or she believes to be a violation of the law.
The law applies only to those social media accounts that are the exclusive personal property of the employee or prospective employee. Employers are, however, permitted to obtain access to private accounts for the purposes of ensuring legal or regulatory compliance, investigating employment-related misconduct or investigating a potential disclosure of the employer's proprietary or confidential information. The law does not prohibit employers from accessing accounts its employees use for business-related purposes, and employer review of material that employees or prospective employees post publicly on an otherwise private social media account remains lawful.
Enforcement of New Jersey's social media law is left solely to the state's Department of Labor; the law does not provide individuals with a private right of action. Companies may be fined up to $1,000 for their first violation and $2,500 for violations thereafter.
Amendment to NJLAD Prohibits Retaliation Against Employees Who Seek Information About Their Coworkers
An amendment to New Jersey's Law Against Discrimination (NJLAD), signed into law on August 28, 2013 and given immediate effect, adds a nonretaliation pay equity measure to NJLAD. Intended to protect employees who request information about other employees' or former employees' compensation or potential membership in a protected class, the amendment prohibits employer retaliation for such a request, provided the request is made either as part of an investigation into potential discriminatory treatment or to take legal action for such discriminatory treatment with regard to compensation.
It is important to note that the amendment does not require employers to take action in response to such a request from an employee or to provide him or her with the information sought while employers are free to deny such requests; they are, however, prohibited from retaliating against the employee making the request.
Employers in New Jersey should consider examining and, if necessary, revising their policies pertaining to requests for and disclosure of protected information, and they should take steps to make sure that supervisory and managerial employees are aware of NJLAD's new provisions.
"NJ Safe Act" Requires Unpaid Leave for Employees Affected by Domestic or Sexual Violence
A new law that took effect on October 1, 2013 enables eligible employees within New Jersey to take 20 days of unpaid leave within a 12-month period in the event that the employee, his or her child, parent, spouse or domestic or civil union partner is the victim of domestic or sexual violence.
Dubbed the New Jersey Security and Financial Empowerment Act, but better known as the "NJ Safe Act," the law applies to employers within the state with 25 or more employees. Its intended purpose is to allow victims of assault, or those who are giving care to such victims of assault, to engage in a series of activities related to such victims' recovery without fear of losing their jobs.
The NJ Safe Act covers those employees who have worked for a covered employer for at least 12 months and who have worked at least 1,000 hours during the previous 12 months. Leave may be taken within one year of an occurrence of domestic violence or sexual assault, and it may be taken intermittently. If the need for leave is foreseeable, employees seeking such leave are required to provide written notice to their employer as far in advance as possible. Employers are permitted to request documentation from the employee supporting the employee's need for leave. The act also requires employers to post a notice made available by the New Jersey Commissioner of Labor and Workforce Development to inform employees of their rights.
Employees are provided with a private right of action under the NJ Safe Act and are able to seek relief in the New Jersey Superior Court up to one year after an alleged violation. Prevailing plaintiffs may be entitled to recovery of economic and noneconomic damages, as well as attorneys' fees, a civil fine and an order of reinstatement. The law, like most of New Jersey's employment laws, contains a provision that prohibits retaliation against an employee who exercises his or her rights under it.
New Jersey employers with more than 25 employees should take steps to ensure that their leave policies comply with the new law. Such employers should also make sure that any employee training on the subject of retaliation includes information on the NJ Safe Act and that they have posted the required materials within their workplaces.
Significant Changes Made to Connecticut's Personnel Files Act
As a result of an amendment to Connecticut's Personnel Files Act that took effect on October 1, 2013, employers within the state now have a dramatically shorter period of time within which to respond to requests from current or former employees to inspect the contents of their personnel files. Whereas the law previously required employers to permit such inspection "within a reasonable period of time," the law now mandates that current employees be allowed to inspect their files within seven days of a written request; former employees must receive the same opportunity within ten days. Such inspections are to take place during regular business hours and at a location at, or reasonably near, the employee's place of employment.
The amendment also places a number of other new requirements on Connecticut employers. Among them are the following:
Employees must now be provided with a copy of any documented disciplinary action not more than one business day after the action is imposed;
Employees must "immediately" be given copies of any documented notice of the termination of their employment;
Employers must now include a "clear and conspicuous" statement in any written termination or disciplinary notice that, should an employee disagree with any information contained in such a document, the employee may submit a written explanation of his or her position. If an employee chooses to submit such a statement, employers are required to include it within the employee's personnel file; employers must also include the employee's statement with any transmission of or disclosure from the file to any third party.
As before, Connecticut's Personnel Files Act does not contain a private right of action. The state's Department of Labor may impose a fine of up to $500 for a first violation and up to $1,000 for subsequent violations involving the same employee.